Supreme Court rejects referee’s recommended sanction and imposes longer suspension on lawyer found guilty of disbursing trust funds without court approval and negligence in managing trust account. [Added 5/8/17] Lawyer represented Wife in a divorce case in which the marital residence was the only disputed asset. When Lawyer learned that Husband took out a $100,000 home equity on the property and had spent $40,000, Lawyer filed a motion to preserve assets. The court ordered Husband to deposit the remaining $60,000 into Lawyer’s trust account. After the deposit, Lawyer disputed approximately $46,000 to his client, $12,000 to himself for fees, and used the rest to pay costs. Lawyer claimed that he made the disbursements “based on his genuine understanding of Florida’s equitable distribution principles.” The parties entered a marital settlement agreement under which Wife would return $12,000 of the funds that had been disbursed to her. The court did not require Lawyer to re-deposit any money into the trust account “because the court concluded that the dispute had been resolved in the marital settlement agreement.” The court, however, referred Lawyer to the Florida Bar for investigation. The Bar’s auditor found several instances of improper trust account maintenance, including having balances lower than they should have been, depositing earned fees into the trust account and thus commingling funds, and 3 overdrafts on the trust account. The referee found Lawyer had violated these rules: 4-3.4(c) (knowingly disobeying obligation under rules of tribunal); 5-1.1(a) (holding funds belonging to others in trust, separate from the lawyer’s own property); and 5-1.1(b) (money entrusted to a lawyer for specific purpose is held in trust and must be applied only to that purpose). The referee recommended a 90-day suspension and 1 year of probation. Both the Bar and Lawyer sought Supreme Court review; Lawyer challenged findings in aggravation and mitigation, and both parties challenged the recommended sanction. The Supreme Court increased the sanction to a 1-year suspension followed by 2 years of probation with conditions. The Court did agree with Lawyer that there was not sufficient support for the referee’s finding that Lawyer acted with a dishonest or selfish motive. The referee’s report, based on a joint stipulation as to the facts, noted that Lawyer acted based on his “genuine understanding” of Florida law. The Bar contended that the fact that Lawyer used some of the funds to pay his fee showed that his motives were “inherently selfish.” The Court disagreed. “[T]here is no evidence to indicate that [Lawyer] was not entitled to fees in his representation of the client, and the Bar did not allege that the fee was prohibited or excessive in violation of Bar Rule 4-1.5. Collecting a legally proper attorney’s fee, without more, is not itself a selfish or dishonest act.” Further, careless accounting does not evidence a dishonest or selfish motive. As for the sanction, negligence in his trust accounting and disbursing the trust funds without a court order resolving the matter was sufficient grounds for the Court to reject the referee’s recommendation and impose the harsher sanction of a 1-year suspension followed by 2 years of probation. Florida Bar v. Brutus, __ So.3d __ (Fla., No. SC14-2499, 5/4/2017), 2017 WL 1739231.

Suspending lawyer for 1 year for lack of competence, failing to follow court rules and orders, and misrepresentation to court, Supreme Court holds that referee in disciplinary case may question respondent lawyer even if lawyer does not testify as witness. [Added 3/31/17] The Florida Bar charged Lawyer with violating various ethics rules in connection with his representation of a client in federal court. The federal case had been dismissed due to “discovery violations that demonstrated a clear pattern of contumacious conduct.” The federal court specifically found that Lawyer made an intentional misrepresentation to the court when he electronically served a “Notice of Serving Responses to Discovery Requests” that was linked to a pending motion to compel written discovery. This led the magistrate judge to believe that Lawyer was providing the requested discovery materials, when no such materials were being provided. The referee found that Lawyer had violated these rules: 4-1.1 (competence); 4-3.1 (frivolous assertions); 4-3.3 (candor toward a tribunal); 4-3.4(a) (unlawfully obstruct access to evidence); 4-3.4(c) (disobeying court rules or orders); 4-3.4(d) (discovery violations); and 4-8.4(d) (conduct prejudicial to administration of justice). The Supreme Court approved these findings despite challenges from Lawyer. Lawyer also argued that he was deprived of a fair trial because: “(1) although he elected not to testify, the referee questioned him after the parties rested their cases, he was not placed under oath for such questioning, and the referee relied on [Lawyer]’s answers to these questions in making her findings of fact and recommendations as to guilt; and (2) the Bar was also allowed to cross-examine [Lawyer] after it rested its case.” The Court rejected this argument. A Bar disciplinary proceeding is a “quasi-judicial administrative proceeding” and is not civil or criminal, so the referee is not bound by the technical rules of evidence. And, unless the respondent has claimed an applicable privilege, he or she may be called as a witness by the Bar and questioned on matters material to the issues in the case. “Construing these principles together, we conclude the referee is authorized to ask questions of the respondent to clarify relevant facts and issues, even if the respondent does not testify as a witness. And, in any disciplinary proceeding, the respondent has an obligation to answer the referee’s questions truthfully, regardless of whether he or she is placed under oath.” The court further concluded that allowing the Bar to cross-examine Lawyer after the referee’s questioning and after the Bar had rested its case did not prejudice Lawyer, where his counsel was given the same opportunity. Florida Bar v. Bischoff, __ So.3d __ (Fla., No. SC14-2049, 3/2/2017), 2017 WL 823598.

Again finding recommended sanction too lenient, Supreme Court increases suspension of lawyer who mishandled $500 of trust money from 90 days to one year. [Added 2/22/17] Lawyer asked Client for $500 to be used for deposition transcripts. Client gave Lawyer a $500 check, which Lawyer deposited into his operating account rather than his trust account. Lawyer did not pay for the transcripts. Several months later, Client inquired about the transcripts. Lawyer told Client that he had financial problems and used the money to pay expenses. Client indicated that she would pay the court reporter directly. Lawyer agreed to repay the money when he could. Almost a year later, Lawyer had not repaid the money. Almost a year after the original check was issued to Lawyer, he told Client that he had performed additional post-judgment legal services for which the fees would be more than $500, and offered to forgo charging for the additional services if Client would drop her demand for the $500. A month later Client filed a bar complaint against Lawyer. Subsequently Lawyer met Client at a bank and paid Client the $500 “on the condition that [Client] would request dismissal of the Bar grievance she filed against” him. Lawyer gave Client a receipt indicating that the money was repaid and requesting that the Bar complaint be dismissed. When contacted by the Bar, Lawyer provided the Bar with a copy of the receipt. Lawyer also filed an inaccurate Certificate of Disclosure form indicating that he was not part of a legal firm (when he actually was). Lawyer was found guilty of violating Rules 3-7.1(f) (notice of grievance to lawyer’s law firm), 4-1.5 (fees), and 4-8.4(d) (conduct prejudicial to the administration of justice). The referee recommended a 90-day suspension. The Supreme Court, however, suspended Lawyer for one year. Lawyer “converted client funds for his own use and repaid the funds at a later time. In addition, as in [Florida Bar v.] Frederick [756 So.2d 79 (Fla. 2000)], he attempted to condition the repayment upon the client’s agreement not to complain to the Bar about his misconduct. Based on the existing case law, we conclude that the Bar is correct that a one-year suspension, followed by two years’ probation with the conditions recommended by the referee, is warranted. As we have noted many times, misuse or misappropriation of client funds is one of the most serious offenses a lawyer can commit, and disbarment is presumed to be the appropriate punishment. Fla. Bar v. Travis, 765 So.2d 689, 691 (Fla. 2000). We see no reason under the circumstances of this case, even given the referee’s uncontested findings of mitigation, to impose anything less than a rehabilitative suspension.” Florida Bar v. Wynn, __ So.3d __ (Fla., No. SC15-1323, 2/16/2017), 2017 WL 632871.

Supreme Court rejects “narrow view” of what constitutes competent representation, and increases discipline to be imposed on lawyer for “pattern of client neglect and mismanagement.” [Added 12/28/16] The Florida Bar charged Lawyer with ethical violations in 3 criminal cases Lawyer was handling for clients. Specific allegations included: failing to timely appear for hearings; failing to follow a judge’s instructions to file a pretrial motion; appearing for a probation modification hearing without her client and at the wrong time, and presenting incorrect information about her client at the hearing; failing to notify the court and opposing counsel of schedule conflicts; and not getting voicemail messages “because her inbox was routinely full.” Among other things, Lawyer’s conduct resulted in issuance of a bench warrant for a client, who was jailed for 5 days. The referee presiding over the disciplinary case recommended that Lawyer be found guilty of violating Rules 4-1.1 (competent representation), 4-1.3 (diligent representation); 4-3.4(c (knowingly violating rules of tribunal); and 4-8.4(d) (conduct prejudicial to administration of justice). The referee recommended a 91-day suspension. Lawyer sought Supreme Court review of the findings regarding Rules 4-1.1 and 4-3.4(c), as well as the level of discipline. The Supreme Court approved the guilty findings. The Court rejected Lawyer’s arguments that she provided competent representation despite her lapses, stating: “This Court . . . has not taken such a narrow view of competence, and has recognized that demonstrated neglect of key client matters constitutes a violation of Bar Rule 4-1.1.” The Court also rejected Lawyer’s argument that she did not violate Rule 4-3.4(c) because her disregard of court orders was “done unintentionally and not ‘knowingly’ as required by” the rule. Under the Rules of Professional Conduct, “knowing” denotes not intent, but simply “actual knowledge of the fact in question.” Here, Lawyer “clearly had knowledge of Judge Roberts’ order and admitted in the proceedings before the referee that she knew she was not in compliance with it when she filed the motion at three o’clock in the morning the day trial was to commence. [Lawyer] also clearly had knowledge of when the proceedings in the Jennings case were scheduled to occur, having received court documents and e-mails containing the date and time of the hearing. Finally, the Court viewed the recommended discipline as too lenient and imposed a one-year suspension. Lawyer’s actions were “part of a pattern of client neglect and mismanagement that [she] has engaged in for several years.” Accordingly, considering the multiple acts of client neglect committed by [Lawyer], the harm caused to her clients, and her extensive prior disciplinary record, we believe that a ninety-one day suspension is not appropriate and that a more severe sanction is warranted.” Florida Bar v. Picon, __ So.3d __ (Fla., No. SC15-385, 12/8/2016), 2016 WL 7163643.

Supreme Court rejects referee’s recommendation and disbars rather than suspends 2 lawyers for involvement in secret settlement with insurer that effectively deprived co-counsel of fees and failed to disclose information to clients. [Added 10/31/16] The Florida Bar charged 3 lawyers with involved in a complex scheme through which a number of PIP and bad faith claims were brought on behalf of health care providers against Progressive Insurance Company and other insurers. The lawyers were with 2 law firms (the “PIP lawyers”) that joined together in the cases and brought in a third law firm (the “bad faith lawyers”) to handle the bad faith litigation. Ultimately the PIP lawyers reached a settlement agreement with the defendant insurers that encompassed not only the PIP claims but the bad faith claims as well. The bad faith lawyers were not informed about the undifferentiated settlement reached with the defendants. Further, the PIP lawyers’ clients did not receive compensation for their bad faith claims, even though they were required to release those claims as part of the settlement. Nor were the clients told of the potential conflict of interest created as a result of the settlement machinations, the amount that the PIP lawyers would receive in fees, or the fact that some clients received money for their bad faith claims while other clients did not. No closing statements were provided to clients. The referee appointed by the Bar found the 3 lawyers guilty of various rule violations, including Rules 4-1.7 (conflicts), 4-1.8(g) (aggregate settlements), 4-1.4(b) (communication), 4-8.4 (dishonesty, fraud, deceit, or misrepresentation), and 3-4.3 (acts unlawful or contrary to honesty and justice). The referee recommended disbarment for one lawyer and long-term suspension for the 2 others. On review, the Supreme Court disbarred all 3 lawyers. “The referee in this case found that Charles Kane, Harley Kane, and Darin Lentner engaged in egregious misconduct: they secretly negotiated an aggregate settlement that created conflicts of interest between lawyers and clients, and left the bad faith attorneys with no compensation for their significant work in the Goldcoast case; in allocating the settlement funds, they abandoned their PIP clients’ bad faith claims in favor of a greater fee for themselves; and they withheld from clients nearly all the material information about the settlement, entirely to further their own interests. Given their actions, we agree with the referee that Harley Kane should be disbarred. We cannot agree, however, with the referee’s recommendation that Charles Kane and Darin Lentner receive a sanction any less severe. This considerable violation of respondents’ ethical responsibilities to their clients and the legal system, entirely for their own financial interests and at the expense of their clients, warrants disbarment.” The Court also rejected the respondents’ motion to dismiss based on alleged prosecutorial misconduct. Florida Bar v. Kane, __ So.3d __ (Fla., Nos. SC13-388, SC13-389, SC13-390), 32016 WL 3853004.

Supreme Court permanently disbars 2 lawyers whose conduct “is among the most shocking, unethical, and unprofessional” ever seen by Court. [Added 8/25/16] The Florida Supreme Court permanently disbarred 2 lawyers (Adams and Filthaut) who, along with a third lawyer (Diaco, who was permanently disbarred earlier), were found guilty of misconduct arising from a high-profile case involving 2 radio personalities in Tampa. The lawyers were charged with working with one their firm’s paralegals and a local police officer to set up opposing counsel for a DUI arrest in the middle of the hotly-contested trial. The morning after the arrest, the third lawyer made public statements criticizing the arrested lawyer. The referee assigned to try the disciplinary case recommended that Adams and Filthaut be permanently disbarred. The lawyers sought Supreme Court review. The Court approved the referee’s recommendations. The lawyers argued that permanent disbarment was too harsh, arguing that “in imposing permanent disbarment, this Court has usually addressed patterns of continuing egregious and unrepentant misconduct demonstrating that the respondent attorney is not amenable to rehabilitation and is beyond redemption.” The Court seemed to acknowledge this, citing cases as examples, but concluded: “[I]f the misconduct involved in this case is not comparable to that committed in the cases above, this is in part because the misconduct in this case is unique and essentially unprecedented, at least as documented in this Court’s prior case law. The Respondents’ actions constituted a deliberate and malicious effort to place a heavy finger on the scales of justice for the sole benefit of themselves and their client. The personal and professional harm inflicted upon Campbell (a fellow attorney) and his clients’ case, upon Sergeant Fernandez (a personal friend of Filthaut and officer of the law), and upon the legal system, the legal profession, and the public’s confidence in both, was simply collateral damage from the Respondents’ point of view. The Respondents’ willingness to inflict and indifference to causing such harm is, in the words of the referee, quite ‘stunning.’” The Court closed with this warning: “We can only hope that our unanimous decision to approve the referee’s recommendation to permanently disbar these attorneys, a sanction not contested by and already imposed upon the third attorney involved, Stephen Diaco, will serve to warn other attorneys of the high standards of professional conduct we demand of all attorneys. And we hope in some small way, it will send a message to the public that this Court will not tolerate such outrageous misconduct on the part of attorneys admitted to practice law in Florida.” Florida Bar v. Adams, __ So.3d __ (Fla., Nos. SC14-1054, SC14-1056, 8/25/2016), 2016 WL _______.

Court had no authority to order lawyer to “self-report” to Florida Bar and to put confirmation of reporting in public court file. [Added 7/13/16] A trial court imposed sanctions against Lawyer and his law firm, directing Lawyer “to ‘self-report this violation to the Florida Bar within thirty (30) days and provide confirmation of such reporting to the Court by a notice of filing to be placed on the docket in this case.’” Lawyer appealed. The Second DCA reversed this sanction. “Pursuant to rule 3-7.1(1) of the Rules Regulating the Florida Bar, with certain limited exceptions, all attorney disciplinary matters pending at the initial and grievance committee levels are treated as confidential. Although Moakley [v. Smallwood, 826 So.2d 221 (Fla. 2002)] authorizes the imposition of attorney’s fees and costs as a sanction for bad faith conduct of an attorney, the trial court had no inherent authority to order [Lawyer] to self-report a ‘violation’ to the Florida Bar with confirmation of such to be placed in a public court file. The trial court abused its discretion in ordering him to do so.” Parrish v. RL REGI Financial, LLC, __ So.3d __ (Fla. 2d DCA, No. 2D15-1674, 6/29/2016), 2016 WL 3549423.

Complaint alleging defamation against Florida Bar due to posting of disciplinary status on Bar’s website was properly dismissed by circuit court. [Added 6/8/16] Zavadil sued the Florida Bar for defamation, alleging “ that the Bar defamed him when it posted in his attorney profile and stated in a letter that he had been ‘disbarred’ when the supreme court had ‘revoked’ his license for making material omissions in his application for admission to the Bar. See Fla. Bd. of Bar Exam’rs re Zavadil, 123 So.3d 550 (Fla. 2013).” The trial court dismissed the complaint. The First DCA affirmed, choosing to write an opinion in response to Zavadil’s motion for rehearing. A law license revocation can be tantamount to disbarment (see Rule 3-5.1(g)). Further, as an agency of the Supreme Court the Bar has absolute immunity for actions taken within the scope of its authority – and “[m]aintaining an accurate public listing of attorneys, including whether or not they are in good standing and able to practice, is an integral part of the Bar’s duties, as is responding to inquiries regarding an attorney’s status.” Zavadil v. Florida Bar, __ So.3d __ (Fla. 4th DCA, No. 4D15-3573, 6/8/2016), 2016 WL 3190918.

Supreme Court suspends lawyer for 3 years instead of recommended 90 days for violations of Rule 4-8.4(c) (dishonesty, deceit, misrepresentation, fraud) and 5-1.1(b) (trust accounting). [Added 6/2/16] Lawyer was officer of a title company and acted as escrow agent in real estate financing transactions. He did not report certain material information to a lender (e.g., that the loan proceeds were being used to purchase the house instead of for repairs to a house that supposedly was already owned by the borrowers). Lawyer also failed to record the loan closing documents until 6 months after the transaction. Eventually the borrowers defaulted on the loan. The Bar charged Lawyer with ethical violations, but the referee concluded that no violations occurred. The Supreme Court rejected the referee’s conclusions and ruled that Lawyer had committed 3 violations of Rule 4-8.4(c): (1) drafting, executing, and witnessing a mortgage loan document containing the misrepresentation that the borrowers had legal authority to encumber the property; (2) deliberately failing to tell the lender that the funds were not being used in accordance with her agreement, as well as not informing her of the delay in recording the mortgage; and (3) failing to loan to an institutional lender by not including it on the list of encumbrances in the title insurance policy. Lawyer also violated Rule 5-1.1(b) (trust accounting). The Court remanded for a hearing on the appropriate sanction. On remand, after finding mitigating and aggravating factors the referee recommended a 90-day suspension and 3 years’ probation. The Bar sought Supreme Court review. The Court rejected the recommended discipline as too lenient in light of the “serious nature of” the violations. Determining that Lawyer “should receive a suspension requiring proof of rehabilitation prior to reinstatement,” the Court suspended him for 3 years. Florida Bar v. Marrero, __ So.3d __ (Fla., No. SC11-1780, 6/2/2016), 2016 WL 3090333.

Circuit court did not depart from essential requirements of law in staying litigation pending results of Bar disciplinary case against one party’s lawyer filed by other party. [Added 12/23/15] Lawyer was a Plaintiff in a suit filed against Defendants for payment of legal fees allegedly owed. Defendants counter-claimed for legal malpractice and, 2 years into the litigation, filed a Bar grievance against Lawyer. Lawyer filed a motion in circuit court to stay proceedings in the litigation until the Bar grievance was resolved. After a hearing, the trial court granted the motion to stay. Defendants petitioned the Third DCA for a writ of certiorari. The Third DCA denied the petition, ruling that the trial court did not abused its discretion. Defendants “have not cited any clearly established principle of law preventing a trial court from staying civil proceedings related to a pending bar grievance.” The court commented that Rule Regulating The Florida Bar 3-7.4(e) “contemplates the situation presented when civil litigation and a bar grievance are interrelated” and “requires the grievance process to move forward (absent express approval from the Bar’s Board of Governors), during the pendency of litigation.” Defendants “cited no correlated authority that would prevent the trial court from exercising its discretion to stay proceedings during the pendency of Bar grievance proceedings.” Florida Wellness & Rehab Center, Inc. v. Libman, __ So.3d __ (Fla. 3d DCA, No. 3D15-1629, 12/9/2015), 2015 WL 8357583.

Supreme Court suspends lawyer for one year (rather than recommended 91 days) for bad faith conduct in violating court orders. [Added 6/3/15] Lawyer represented several businesses that were being sued for breach of contract. During lengthy and contentious discovery, Lawyer raised objections that the court had already considered and ruled against. The trial court found that Lawyer violated multiple court orders, and sanctioned him for bad faith conduct. The Bar charged Lawyer with violating Rules 4-1.1 (competent representation), 4-3.4(d) (violating court orders), and 4-8.4(d) (conduct prejudicial to administration of justice). The referee found Lawyer guilty and recommended a 91-day suspension. On review, the Supreme Court affirmed the guilt findings but increased Lawyer’s suspension to one year. “[W]e find that [Lawyer]’s repeated failures to comply with court orders and his bad faith conduct, together with the aggravating factors found by the referee, warrant a suspension longer than ninety-one days. We conclude that a one-year suspension is appropriate.” The Court found it “particularly significant that [Lawyer] has refused to accept the wrongful nature of his misconduct.” The Court again emphasized that in recent years it “has moved toward imposing stronger sanctions for unethical and unprofessional conduct. See Fla. Bar v. Adler, 126 So.3d 244, 247 (Fla. 2013) (noting that ‘this Court has moved towards stronger sanctions for attorney misconduct’); Fla. Bar v. Rotstein, 835 So.2d 241, 246 (Fla. 2002) (noting that many of the cases cited by the respondent were inapplicable ‘because the cited cases are dated and do not reflect the evolving views of this Court’ and that ‘[i]n recent years, this Court has moved towards stronger sanctions for attorney misconduct’).” Florida Bar v. Rosenberg, __ So.3d __ (Fla., No. SC13-2067, 5/28/2015), 2015 WL 2458013.

Supreme Court increases lawyer’s suspension to one year for knowingly violating discovery obligations, failing to correct false testimony at deposition, and failing to notify opponent that she was in possession of property in which opponent claimed interest. [Added 4/24/15] Lawyer represented Wife in a contested dissolution case. As a result of her conduct, the Bar charged Lawyer with numerous ethical violations. The referee found that Lawyer filed affidavits that knowingly failed to disclose $480,000 that Wife had withdrawn from an account via a cashier’s check made out to a non-existent charity. Lawyer provided interrogatory answers that she knew were false. Lawyer failed to produce items requested for production. When Wife testified falsely about the cashier’s check during her deposition, Lawyer “failed to take any action to correct her client’s false testimony so as to prevent the possibility of committing a fraud on the court.” The referee recommended that Lawyer be found guilty of violating these rules: 3-4.3 (commission by lawyer of any act unlawful or contrary to honesty and justice may constitute cause for discipline); 4-3.3(a)(1) (lawyer shall not knowingly make false statement to tribunal or fail to correct false statement); 4-3.3(b) (lawyer who knows person is engaging or has engaged in fraudulent conduct shall take reasonable remedial measures); 4-3.4(a)-(d) (lawyer must not obstruct party’s access to evidence, conceal material that is relevant or counsel or assist another to do so, fabricate evidence or counsel or assist witness to testify falsely, disobey obligation under rules of tribunal, or fail to comply with proper discovery request); 4-4.1 (lawyer shall not make false statement to third person or fail to disclose facts to third person when necessary to avoid assisting in criminal or fraudulent act); 4-8.4(a) (lawyer shall not violate Rules of Professional Conduct, knowingly assist or induce another to do so); 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); and 5-1.1(e)-(f) (upon receipt of property in which another person claims interest, lawyer shall treat it as trust property and notify claimant of receipt). The Supreme Court upheld the guilt findings. The Court rejected Lawyer’s argument that her discovery violations were “inconsequential” because Wife’s financial information ultimately was disclosed before the trial. “[C]oncealing a document even temporarily, and even when the information may be available to opposing counsel by other means or from other sources, has been held to be misconduct.” Regarding Lawyer’s failure to correct Wife’s false testimony, the Court acknowledged that the duty of candor to the tribunal imposed by Rule 4-3.3 can put an attorney in the “difficult position” of betraying the client’s confidence by taking the “reasonable remedial measures” suggested by the Comment to the Rule: “If perjured testimony or false evidence has been offered, the advocate’s proper course ordinarily is to remonstrate with the client if circumstances permit. In any case, the advocate should ensure disclosure is made to the court.” (In a footnote, the Court distinguished the situation that can sometimes arise in criminal cases “in circumstances where a lawyer’s duty of candor to the tribunal must be ‘balanced with competing obligations.’ United States v. Stewart, 931 F.Supp. 2d 1199, 1215 (S.D. Fla. 2013).”) At Wife’s request, Lawyer also took possession of a coin collection that Husband claimed belonged to him. “[E]ven though ownership was disputed by her client, [Lawyer] had a clear duty to notify opposing counsel that she had received and had custody of the coins. She did not do so until she was ordered to in connection with a postjudgment contempt proceeding.” The referee recommended a 90-day suspension, but the Court instead suspended Lawyer for one year. Fla. Bar v. Dupee, __ So.3d __ (Fla., No. SC13-921, 3/26/2015), 2015 WL 1343119.

Supreme Court suspends, rather than just reprimands, lawyer for lack of diligence despite fact that client suffered no harm. [Added 2/12/2015] Lawyer was hired to represent Client at a criminal resentencing hearing. Lawyer got a notice setting the hearing for March 28. He filed a “Motion to Continue Resentencing Hearing and Notice of Unavailability,” which stated that the notice was not reasonable and that he was unavailable on March 28 because he was working on another client’s case. “Significantly, [Lawyer] did not indicate in the motion whether the State agreed to the continuance, he did not submit a copy directly to the presiding judge, and he did not set the motion for a hearing.” On the day of the hearing, the presiding judge traveled from another county to be present, the prosecutor was there, the client was there – but Lawyer did not appear. The judge reported Lawyer to the Florida Bar, which initiated disciplinary proceedings. The referee found that Lawyer violated Rule 4-1.3 (diligence) and 4-8.4(d) (conduct in connection with practice of law that is prejudicial to administration of justice). The referee recommended that Lawyer be publicly reprimanded, required to under an evaluation by Florida Lawyer’s Assistance, Inc. (“FLA”), and have his law practice reviewed by the Bar’s Law office Management Assistance Service (“LOMAS”). Lawyer challenged the findings of guilt, but the Supreme Court had no problem approving the referee’s guilt findings. Lawyer argued that he did not violate 4-1.3 because there was no evidence of harm to his client. The Court disagreed: “[W]e have previously explained there is no requirement that a client suffer actual harm as a result of an attorney’s lack of diligence in order to find a violation of rule 4-1.3. See Florida Bar v. Solomon, 711 So.2d 1141, 1146 (Fla. 1998) (stating that ‘actual harm or prejudice is not an element of incompetence or lack of diligence under the Rules Regulating the Florida Bar.’).” As to the violation of Rule 4-8.4(d), the Court explained that, regardless of whether the hearing had been properly scheduled, “the fact remains that the hearing had not been continued by the presiding judge and thus [Lawyer] was required to appear on his client’s behalf.” Lawyer’s actions in failing to appear “were harmful to the legal system and that such conduct cannot be tolerated by an officer of the Court.” The Court increased the level of discipline recommended by the referee, suspending Lawyer for 10 days (in addition to the public reprimand, FLA evaluation, and LOMAS review). Florida Bar v. Cohen, __ So.3d __ (Fla., No. SC12-2724, 2/12/2015).

Rejecting referee’s report, Supreme Court finds lawyer guilty of misrepresentation and trust account violations and remands for sanctions hearing. [Added 1/26/15] Lawyer was officer of a title company and was acting as an escrow agent in connection with real estate financing transactions. He failed to report certain information to a lender, such as the fact that the loan proceeds were not being used to purchase the house instead of for repairs to a house that was supposedly already owned by the borrowers. Lawyer also failed to record the loan closing documents until 6 months after the transaction. Eventually the borrowers stopped making payments on the loan. The Bar charged Lawyer with violations of the Rules Regulating The Florida Bar, but the referee concluded that no violations occurred. On review, the Supreme Court rejected the referee’s conclusions and determined that Lawyer’s conduct constituted 3 violations of Rule 4-8.4(c), concerning conduct involving dishonesty, deceit, misrepresentation or fraud. One violation was “drafting, executing, and witnessing a mortgage loan document containing the misrepresentation that the borrowers had the legal authority to encumber the property” and the second occurred due to Lawyer’s “deliberate omissions and knowing failures to report important information” to the individual lender. The third violation related to Lawyer’s failure to disclose the loan to the institutional lender by not including it on the list of encumbrances in the title insurance policy. The Court also found Lawyer guilty of violation the trust accounting rule, Rule 5-1.1(b). The Court remanded for a hearing on the appropriate disciplinary sanction. Regarding a lawyer’s duty as escrow agent, the Court stated: “[A] a lawyer receiving funds from a third party and depositing the funds into his escrow account has a duty to exercise reasonable diligence to determine for what purpose that third party had provided the funds, before disbursing the funds. Respondent violated these requirements.” Florida Bar v. Marrero, __ So.3d __ (Fla., No. SC11-1780, 1/15/2015), 2015 WL 175189.

Lawyer suspended for one year, rather than recommended 60 days, for failures in diligence and communication that led to clients spending time in jail for contempt. [Added 12/24/14] Lawyer represented 2 clients in matters including defense of a civil suit involving their business. The clients were subpoenaed for deposition and to produce documents. They later alleged that Lawyer advised them not to attend. Eventually a show cause order was issued. The clients contacted Lawyer’s secretary about the matter and asked how to proceed; Lawyer did not respond. Ultimately the court issued capias and bench warrants for the clients, who were arrested. The clients spent several days in jail. The clients filed a complaint with the Florida Bar against Lawyer. The referee who presided over the disciplinary case recommended that Lawyer be found guilty of violating rules regarding diligent representation (Rule 4-1.3), communication with clients (Rules 4-1.4(a)(3), 4-1.4(a)(4), and 4-1.4(a)(5)), and conduct prejudicial to the administration of justice (Rule 4-8.4(d)). The referee recommended that Lawyer be suspended from practice for 60 days. On review, the Supreme Court approved the guilty recommendations except for one (Rule 4-1.4(a)(5)). The Court noted that Lawyer’s “failure to act diligently on behalf of the clients and his failure to keep the clients informed, causing significant delays in the case and ultimately resulting in the clients’ arrests and incarceration, were prejudicial to the administration of justice.” The Court rejected the recommended 60-day suspension and instead agreed with the Bar that a 1-year suspension was appropriate. Lawyer’s “conduct is particularly egregious because it ultimately results in his clients each spending three days in jail for contempt.” Florida Bar v. Gass, __ So.3d __ (Fla., No. SC12-937, 12/18/2014)

Settlement agreement conditioned on former client’s withdrawal of Bar complaint is unenforceable term that is not severable from purported agreement. [Added 9/2/14] Lawyer Carr represented Jaffe in establishing a limited guardianship over Jaffe’s son. This was done in order to bring a probate action against an estate. Jaffe hired Carr to handle the probate case on a contingent fee basis. There was no fee agreement regarding the guardianship work by Carr. After a settlement in the probate case, Jaffe discharged Carr. Carr billed Jaffe for his work in the guardianship case, which prompted Jaffe to file a complaint with the Florida Bar. The parties attempted to negotiate a settlement, “but when Jaffe refused to withdraw the Florida Bar complaint as a condition of the settlement, the negotiations broke down.” The court awarded fees to Carr. Jaffe appealed. The Third DCA affirmed. Among other things, Jaffe contended that the portion of the purported agreement regarding withdrawal of the Bar complaint was “severable so as to render the remainder an effective agreement.” The court disagreed. The court noted that “an agreement conditioned upon withdrawal of a Florida Bar complaint is unenforceable. Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla. 2000); Fla. Bar v. Fitzgerald, 541 So.2d 602, 605 (Fla. 1989).” (In a footnote, the court pointed out that attempting to negotiate a settlement conditioned on withdrawal of a Bar complaint is improper as conduct prejudicial to the administration of justice in violation of Rule 4-8.4(d)).” The offending provision, however, was not severable “because the illegal term when to the essence of the settlement.” Jaffe v. Guardianship of Michael Ross Jaffe, __ So.3d __ (Fla. 3d DCA, No. 3D13-2052, 8/27/2014).

Supreme Court disbars lawyer for a "continuing pattern of neglect" in divorce case. [Added 6/23/14] Lawyer was retained by Client, who was serving as guardian for Client’s sister. The sister had Alzheimer’s disease and had been abandoned by her husband. Client paid Lawyer a $5000 retainer to file divorce proceedings for the sister. Lawyer never filed the divorce papers. Almost a year later, the sister’s husband filed for divorce. Lawyer did not file anything in response, and Client was forced to file a response in the divorce case on her own. The Bar charged Lawyer with violating Rules of Professional Conduct 4-1.3 (diligence), 4-1.4(a)(3) (keeping client reasonably informed), and 4-1.4(a)(4) (responding to client request for information). Lawyer did not appear at the final hearing in the Bar matter. The referee recommended that Lawyer be found guilty of the violations and disbarred. The Supreme Court disbarred Lawyer. In doing so, the Court stated: “We conclude that [Lawyer’s] inaction amounts to serious misconduct, warranting a severe sanction. Indeed, because [Lawyer] charged the client a $5,000 retainer and then took no significant action in the case, causing harm to the client and her sister, we believe that her actions warrant a sanction similar to those attorneys who misuse or misappropriate client funds held in trust.” The Court further noted that Lawyer’s failure to file an answer to the Bar’s complaint or to participate in the disciplinary hearing “’calls into serious question the lawyer’s fitness for the practice of law.’ Fla. Bar v. Bartlett, 509 So.2d 287, 289 (Fla. 1987).” Florida Bar v. Davis, __ So.3d __ (Fla., No. SC11-1817, 6/12/2014).

Former judge is disbarred rather than suspended for “dishonest conduct and the harm that her actions have caused to the administration of justice in a capital first-degree murder case.” [Added 6/6/14] Lawyer Gardiner served as a circuit judge. While a judge she presided over a first-degree murder case. Between a period from 4 days before the jury returned a guilty verdict and her imposition of the death penalty (as recommended by the jury) about 5 months later, Gardiner and the lead prosecutor in the case engaged in what was described as “a significant personal and emotional relationship.” They exchanged 949 cell phone calls and 471 text messages. There was no dispute that these communications did not pertain to the murder case. However, the existence of the communications and the relationship was not disclosed to the defense. When the relationship between Gardiner and the prosecutor came to light, the Judicial Qualifications Commission (“JQC”) investigated Gardiner. In her appearance before the JQC she “failed to disclose the honest and true nature of her relationship with” the prosecutor. Ultimately she was admonished by the Supreme Court. Gardiner later resigned from the bench. The Bar charged Gardiner with ethical violations relating to non-disclosure of her relationship with the prosecutor and her lack of candor before the JQC. The referee assigned to try the case recommended that she be found guilty of violating Rule 3-4.3 (commission of unlawful or dishonest act), Rule 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and Rule 4-8.4(d) (conduct prejudicial to the administration of justice) and that she be suspended from practice for 1 year. The Supreme Court accepted the guilty recommendations but rejected the recommended discipline. Stating that Gardiner’s conduct before the JQC was “dishonest and misleading” and that her actions “created an appearance of impropriety” in the murder case, the Court disbarred Gardiner. (The prosecutor was charged by the Florida Bar with violating the rule against conduct prejudicial to the administration of justice and suspended by the Supreme Court for 2 years. See Florida Bar v. Scheinberg, 129 So.3d 315 (Fla. 2013).) Florida Bar v. Gardiner, __ So.3d __ (Fla., No. SC11-2311, 6/5/2014).

Emphasizing deterrence effect of severe disciplinary sanctions, Supreme Court suspends lawyer for 3 years rather than 6 months for filing forged document and failing to promptly return funds to former client. [Added 6/4/14] Lawyer was charged with 2 counts of disciplinary violations. In Count I, he failed to properly respond to a former client’s request for a fee refund and an accounting. He failed to return funds to the client for 3 years (and not until after the filing of a Bar complaint), and never provided an accounting. In Count II, Lawyer forged the signature of another attorney on a complaint filed in federal court. The Supreme Court stated: “Not only did [Lawyer] file a document with a forged signature in a court, he sought to make Waddington [the other attorney] responsible for representation of the four family members. At the time, Waddington had not agreed to representation and was unaware of the filing. Forging the signature of an attorney in a legal action is not only unacceptable, it is outrageous. If lawyers and the public cannot rely upon the authenticity of legal papers, the very foundation of our legal system becomes fractured and unsustainable. This is not a simple mistake or negligent conduct, this was an intentional grievous act.” Rejecting the referee’s recommended disciplinary sanction of a 6-month suspension, the Supreme Court instead suspended a lawyer for 3 years. In doing so, the Court emphasized that “discipline must protect the public from unethical conduct, must be fair to a respondent yet sufficient to sanction the misconduct and encourage reformation and rehabilitation, and must be severe enough to deter others who might be prone or tempted to become involved in like situations.” (Emphasis by Court.) Florida Bar v. Ross, __ So.3d __ (Fla., No. SC11-1106, 5/29/2014).

Although not charged with or convicted of a crime, a lawyer is suspended by the Supreme Court for 1 year rather than the recommended 89 days for failure to file tax returns. [Added 5/14/14]

Stating that it “has repeatedly shown that it views an attorney’s compliance with the tax laws as a very serious matter,” the Florida Supreme Court rejected a referee’s proposed discipline of an 89-day suspension and instead suspended the offending lawyer for 1 year. The lawyer admitted that her conduct violated Rule Regulating The Florida Bar 3-4.3 (act unlawful or contrary to honesty and justice) and Rule 4-8.4(c) (dishonesty, fraud, deceit, or misrepresentation). The lawyer “failed to file timely joint tax returns for nine years” and also “withheld funds for federal income tax, social security tax, and Medicare tax from her employees, but did not pay those funds to the Treasury Department as required by federal law.” The lawyer was not charged with a crime and has made substantial payments to reduce the amount owed. These facts, along with her acceptance of responsibility, helped mitigate the misconduct. Florida Bar v. Erlenbach, __ So.3d __, 39 Fla.L.Weekly S304 (Fla., No. SC10-19=793, 5/1/2014), 2014 WL 1698380.

In disciplining bar member who was judicial candidate, Supreme Court reaffirms that prohibition against personal solicitation of campaign funds is constitutional. [Added 5/7/14] A candidate for a county court judgeship “signed a campaign fundraising letter, in which she personally solicited campaign contributions.” The candidate “admitted to having reviewed and approved the letter.” The Florida Bar charged the candidate with violating Rule of Professional Candidate 4-8.2(b) (lawyer who is candidate for judicial office shall comply with applicable provisions of Code of Judicial Conduct). Canon 7C(1) of the Florida Code of Judicial Conduct prohibits judicial candidates from personally soliciting campaign funds. The referee recommended that the candidate be found guilty. On review in the Supreme Court, the candidate asserted that Canon 7C(1) was an unconstitutional restriction on her right to engage in free speech. The Court rejected this defense. The Court concluded that the canon services the compelling state interests of “protecting the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary.” The Court further concluded that the canon was narrowly tailored to protect these interests. “Under Canon 7C(1), the [candidate] was not completely barred from soliciting campaign funds, but was simply required to utilize a separate campaign committee to engage in the task of fundraising. In other words, Canon 7C(1) is narrowly tailored because it seeks to ‘insulate judicial candidates from the solicitation and receipt of funds while leaving open, ample alternative means for candidates to raise the resources necessary to run their campaigns.’ Simes [v. Ark. Judicial Discipline & Disability Comm’n] , 247 S.W.3d [876] at 883 [(Ark. 2007)]. The Court imposed a public reprimand as the disciplinary sanction. Florida Bar v. Williams-Yulee, __ So.3d __ (Fla., No. SC11-265, 5/1/2014).

Per Supreme Court, lawyer serving as appointed guardian is treated as attorney of record for purposes of rule requiring notice to a court when lawyer is suspended from practice. [Added 5/1/14] Lawyer was suspended from practice for 30 days. Later the Bar sought to have Lawyer held in contempt of court on several counts, including Lawyer’s alleged failure to notify a court of his suspension in violation of Rule 3-5.1(h), Rules Regulating The Florida Bar. This rule requires that a suspended or disbarred lawyer furnish a copy of the Court’s disciplinary order to “all courts, tribunals, or adjudicative agencies before which the respondent is counsel of record.” Lawyer contended that he was not “counsel of record” in the case in question because he had been appointed by the court to serve as guardian of an incapacitated person and had never entered an appearance as attorney of record. The referee assigned to try the case agreed with Lawyer and recommended that he be found not guilty of the charge. On review, the Supreme Court rejected the referee’s recommendation. The Court concluded that, “for all practical purposes, [Lawyer] was the attorney in the case.” Lawyer’s actions in the case were those than an attorney might take. For example: under Probate Rule 5.030, every guardian must be represented by a lawyer, but if the guardian is a lawyer he or she may represent the guardian – and Lawyer did not hire separate counsel to represent him as the guardian. The referee found that Lawyer performed legal tasks in the case that only a lawyer is authorized to perform. Lawyer also filed petitions for orders authorizing payment of attorney’s fees. In view of these facts, the Court stated that Lawyer’s argument that he was not the attorney in the guardianship case and thus was not required to notify the guardianship court of his suspension “is unreasonable.” The Court held Lawyer in contempt. Florida Bar v. Townsend, __ So.3d __ (Fla., No. SC11-2286, 4/24/2014).

Finding accused lawyer guilty of additional rules violations, Supreme Court imposes 3 year suspension rather than recommended 91 days. [Added 4/21/14] Lawyer represented Client in bringing a two-count action, for malicious or tortious interference with a business relationship and for slander. Summary judgment was granted for the defendant. The trial court also found that Lawyer and Client “knew or should have known that the claims asserted in their complaint were not supported by the material facts; would not be supported by the application of then-existing law to those facts; and were frivolous.” In October 2004 the court entered an order awarding the defendant $13,000 in fees and costs, to be paid in equal shares by Lawyer and Client. Seeking to obtain payment, the defendant wrote two letters to Lawyer in December 2007 and May 2008. Days after the May 2008 letter, Lawyer contacted the U.S. Attorney and accused the defendant of attempted extortion and asked for criminal prosecution. The Bar charged Lawyer with violating Rule 4-3.1 (bringing frivolous proceeding), Rule 4-3.4(c) (disobeying obligation under rules of tribunal), Rule 4-3.4(g) (presenting criminal charges solely to gain advantage in civil matter), and Rule 4-8.4(d) (conduct prejudicial to administration of justice). The referee assigned to try the case recommend that Lawyer be found not guilty of violating Rules 4-3.1 and 4-3.4(c). The referee recommended a guilty finding on the other two rules, along with a recommendation for a 91-day suspension. The Supreme Court rejected the not-guilty recommendations and found that Lawyer violated all 4 rules. The trial court in the underlying case found that the claims brought by Lawyer were frivolous, thus supporting a finding of a Rule 4-3.1 violation. Lawyer’s failure to pay the fees and costs awarded against him violated Rule 4-3.4(c). Contrary to the referee’s view, this rule does not require that the failure to comply with a court obligation be “willful” – rather, it only requires a “knowing” failure to obey. Lawyer knew of the order and failed to obey it. As to the disciplinary sanction, the Court noted that its prior decisions suggested that “each of [Lawyer’s] ethical violations, standing alone, would warrant a rehabilitative suspension.” The violations, coupled with 6 aggravating factors, warranted a 3 year suspension. Florida Bar v. Committe, __ So.3d __ (Fla., No. SC11-468, 4/3/2014).

Supreme Court imposes 18-month suspension on lawyer who started business that competed with one of his clients. [Added 2/24/09] -- Florida Bar v. Herman, 8 So.3d 1100 (Fla. 2009).

Supreme Court advises Governor that suspended lawyer who was elected to circuit judgeship is not eligible to take judicial office. [Added 2/4/09] -- Advisory Opinion to the Governor re: Commission of Elected Judge, 17 So.3d 265 (Fla. 2009).

Florida denies reinstatement to suspended lawyer who has not been readmitted to bar of his home state. [Added 2/20/06] -- The Florida Bar re: Untracht, 923 So.2d 457 (Fla. 2006).

"Managing attorney" for nonlawyer's immigration business suspended for one year for assisting UPL and fee-splitting with nonlawyer. [Added 1/18/06] -- The Florida Bar v. Abrams, 919 So.2d 425 (Fla. 2006).

90-day suspension for lawyer who acted as counsel of record for disbarred lawyer and thus allowed him to provide legal services for his clients and commit UPL. [Added 11/28/05] -- The Florida Bar v. Stein, 916 So.2d 774 (Fla. 2005).